Shri Rajiv S/O Rasauliaram Sharma ... vs Ravishankar J.N. Laxminarayanan ...
2017 Latest Caselaw 8457 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH : NAGPUR
              Criminal Application [APL] No. 750 of 2012


 1.      Rajiv son of Rasauliaram Sharma,
         aged about 58 years,
         C/o Hindalco Industries Ltd.,
         Village - Kollur,
         MI : R C. Puram,
         District - Medak 502 300
         Andhra Pradesh.

 2.      Hindalco Industries Ltd.,
         a Company incorporated and
         registered under the Companies
         Act, 1956,
         having its registered office
         at Century Bhawan, 3rd floor,
         Dr. Annie Besant Road,
         Worli, Mumbai-400 025,
         through Authorized Signatory.      .....           Applicants


                               Versus


 Ravishankar J. N. Laxminarayanan
 Jonnaiah,
 aged about 41 years,
 resident of Ward No.5,
 Snehanagar, Mouda,
 Tq. Mouda,
 Distt. Nagpur.                             .....     Non-applicant


                                 *****
 Mr. H. V. Thakur, Adv., for the Applicants.

 Mr. R. N. Deshpande, Adv., for non-applicant.



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                                     *****


                                CORAM :          A.S. CHANDURKAR, J.

               Date on which
               arguments were heard :            05th October, 2017


               Date on which the
               the judgment is
               pronounced                    :   06th November, 2017


 J U D G M E N T:

01. The applicants, being aggrieved by the judgment dated

22nd August, 2012 passed by the learned Member, Industrial Court,

Nagpur, have filed this Criminal Application under Section 482 of the

Code of Criminal Procedure, 1973. By the impugned judgment, the

challenge as raised to the issuance of Process by the learned Judge,

Third Labour Court, Nagpur, has been turned down.

02. The facts giving rise to the present proceedings are that

according to the non-applicant, he was a permanent employee of the

applicant no.2 - Industry. He was one of the five elected

representatives as per the provisions of the Maharashtra Industrial

Relations Act, 1947 [for short, "the said Act"] and was, thus, a

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protected employee. A Departmental Enquiry was held against the

non-applicant, after which a charge-sheet came to be issued. As the

non-applicant was an elected representative, his status was protected

under the provisions of the said Act. The Management had, therefore,

filed an application before the Labour Court seeking permission to

terminate the services of the non-applicant. Those proceedings came

to be withdrawn on 16th March, 2011. Thereafter, on 19th April, 2011,

the Management issued an order of dismissal of services of the non-

applicant. That order was challenged independently by the non-

applicant. On the ground that such dismissal order violated the

provisions of Section 101 (3) read with Section 101 (1) [Clauses a to c]

of the said Act, the non-applicant approached the Labour Court. The

Labour Court passed an order directing the non-applicant to record his

statement under Section 200 of the Code. After such statement was

recorded, Process came to be issued against the Company, its

Managing Director as well as its Works Head. The said accused

persons hence filed Revision Applications challenging aforesaid order

issuing Process. The Industrial Court by the impugned order set aside

the order issuing Process against the Managing Director. However, the

order issuing Process was maintained as against the Company and the

Works Head. Being aggrieved, the present Criminal Application has

been filed.

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03. Shri H. V. Thakur, learned counsel for the applicants,

submitted that the learned Judge of the trial Court committed an error

in issuing Process against the present applicants. There were no

specific averments in the application as moved by the non-applicant by

which the applicants could be held liable under Section 101 of the said

Act for contravention of any provisions thereof. Even in the statement

of the non-applicant that was recorded under Section 200 of the Code,

there was no reference to any act committed by the applicants that

would constitute an offence under Section 101 of the said Act. In

absence of any statutory vicarious liability of the applicants herein, no

Process could have been issued merely on the basis of vague

statements in the application. It was then submitted that the

applicants having acted on the basis of proved misconduct of the non-

applicant, there was no question of the non-applicant being victimized.

As the non-applicant had ceased to be a member of the union when he

was dismissed from service, he was not entitled for any statutory

protection as sought to be urged by the non-applicant. Action was

taken against him under the Model Standing Orders. In the aforesaid

circumstances, therefore, continuation of present proceedings would

an abuse of the process of law and the proceedings, therefore, deserve

to be quashed. In support of his submissions, the learned counsel

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placed reliance on the following decisions:-

[1] T. Natrajan Vs. Indian Oxygen Ltd. [represented by its Plant Manager], Chennai & another [2004 (1) L.L.N. 309], [2] Sabitha Ramamurthy & anotehr Vs. R.B.,S.

Channabasavaradhya [ (2006) 10 SCC 581],

[3] M/s. Thermax Ltd. & others Vs. K.MN. Johny & others [2011 (11) SCALE 128],

[4] G. Sagar Suri & another Vs. State of U.P. & others [ (2000) 2 SCC 636],

[5] S. K. Alagh Vs. State of Uttar Pradesh & others [ (2008) 5 SCC 662],

[6] Maharashtra State Electricity Distribution Co. Ltd.

& another Vs. Datar Switchgear Ltd. & others [(2010) 10 SCC 479],

[7] Maksud Saiyed Vs. State of Gujarath & others [(2008) 5 SCC 668],

[8] MICICI Bank Ltd. & others Vs. State of Mah. & another [2010 III CLR 725],

[9] Messers Bharat Iron Works Vs. Bhagubhai Balubhai Patel & others [(1976) 1 SCC 518],

[10] Pepsi Foods Ltd. & another Vs. Special Judicial Magistrate & others [(1998) 5 SCC 749], and

[11] Asmathunnisa Vs. State of A.P. Represdented by the Public Prosecutor, High Court of A.P., Hyderabad & another [(2011 (4) SCALE 101].

04. Per contra, Shri R.N. Deshpande, learned counsel for the

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non-applicant, supported the impugned judgment. Referring to various

provisions of the said Act and the Memorandum of Settlement dated

15th September, 2008, it was submitted that the non-applicant was a

protected workman. According to him, the applicants themselves had

sought permission of the Labour Court to terminate the services of the

non-applicant. Those proceedings came to be withdrawn for no

justifiable reason. The non-applicant being the beneficiary of the

agreement between the employer and the union, he was entitled for

statutory protection. As per provisions of Section 101 (1) (a) of the

Act, no action could be taken against the non-applicant without

complying with the statutory provisions. The averments made in the

application were sufficient and an offence as alleged was clearly made

out. The learned Judge of the Labour Court having issued Process and

the Industrial Court having maintained that order, no interference was

called for. It was, therefore, submitted that the contentions as urged

on behalf of the applicants would be required to be examined during

the trial and at this stage no case for interference had been made out.

It was, thus, submitted that the Criminal Application deserves to be

dismissed.

05. I have heard the learned counsel for the parties at length

and with their assistance I have also gone through various documents

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filed on record.

06. Perusal of the application filed under Section 101 (1) and (3)

of the said Act indicates that according to the non-applicant, he was a

protected employee of the applicant no.2 and despite such statutory

protection, his services came to be terminated on 19th April, 2011.

According to him, it was necessary for the Management to have sought

prior permission before terminating the services of a protected

employee. Such proceedings were filed by the Management seeking

permission but on 16th March, 2011, as those proceedings were not

prosecuted, the order of termination was illegal and was, thus, in

violation of the provisions of Section 101 (1) (a), (b) & (c) of the said

Act. Initially, the learned Judge of the Labour Court directed the non-

applicant to record his statement as required under Section 200 of the

Code. Accordingly, such statement was recorded on 21st December,

2011. Thereafter, on perusing that statement, the trial Court issued

Process against all the accused. As noted above, this order issuing

Process was challenged before the Revisional Court which accepted

the challenge only in so far as accused no.2 is concerned.

07. Perusal of the statement of the non-applicant recorded

under Section 200 of the Code indicates that he has stated that there

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was a Memorandum of Understanding entered into between the

Management and the Union. The non-applicant was the office-bearer

of the Union. Though proceedings seeking permission to terminate his

services were filed, those proceedings were withdrawn. Thus, the

termination was illegal and, therefore, he was entitled for

reinstatement. Except the aforesaid, the non-applicant has not stated

anything as regards the role played by the applicant no.1 herein who

was described as the "Works Head" of applicant no.2. Under the

provisions of the said Act, no statutory liability is imposed on the

persons in control and in management of the employer. Vicarious

liability of office-bearers has not been statutorily provided. In this

regard, it is well settled that in absence of any provision imposing

statutory liability, there has to be specific allegation as to the role

played by each accused resulting in commission of the alleged offence.

Merely because Applicant No.1 is holding the post of Works Head, in

absence of any pleading in the application or a statement made on

verification as to the role played by applicant no.1 resulting in

commission of the alleged offence, he cannot be made personally

liable. Reference in this regard can be made to the decisions in

Maksud Saiyed [supra] and Maharashtra State Electricity Distribution

Co. Ltd. & another [supra]. Thus, even if the application under Section

101 of the said Act is taken at its face value and the statement of the

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non-applicant on verification is perused, no offence, whatsoever, has

been alleged to have been committed or made out against the

applicant no.1. There is not even a whisper about the role of the

applicant no.1. The learned Judge of the Revisional Court in paragraph

21 of the impugned order while setting aside the order issuing Process

against the Managing Director has rightly found that the Managing

Director was not the agent of the Company as defined under Section 3

(14) of the said Act. The same analogy would apply in so far as the

Works Head of the Company is concerned when he has been arrayed in

his personal capacity. Thus, in absence of necessary pleadings and in

further absence of any provision saddling statutory vicarious liability

on the Works Head, the issuance of Process against the Works Head

would be without any material basis. The Revisional Court committed

an error by not setting aside order issuing Process against the Works

Head on the same analogy on which it set side the order against the

Managing Director.

08. Applicant No.2 is the Company itself through its Authorized

Signatory. On a prima facie reading of the application filed under

Section 101 (1) and (3) of the said Act, coupled with the Verification

Statement made under Section 200 of the Code, I find that there is

material to proceed against the Company. The contention that though

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permission was sought of the Competent Authority for terminating

services of the non-applicant and those proceedings came to be

withdrawn as he ceased to be a protected employee, is a matter to be

considered after leading evidence. There is prima facie material with

regard to allegations pertaining to breach of provisions of Section 101

(1) (a) and (b) of the said Act. The claim of the non-applicant of being

a protected employee and the defence of the applicant no.2 that the

non-applicant ceased to have any protection and, therefore, his order

of termination was not vulnerable on that count is a matter that

requires adjudication at the trial. The material on record is sufficient

to sustain the order issuing Process against Applicant No.2. At this

stage, when the order issuing Process is under challenge, the

contentions which require recording of evidence cannot be gone into. I,

therefore, do not find it necessary to examine the ratio of the decisions

relied upon by the learned counsel for the applicants in that regard.

09. Hence, by observing that the defence as sought to be raised

to the initiation of proceedings by the non-applicant would require

consideration after evidence is led, I am inclined to partly allow the

present application by setting aside the order issuing Process in so far

as Applicant No.1 is concerned. Without entering into the merits of

question whether the order of termination was required to be preceded

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with valid permission, the application is partly allowed.

10. Accordingly, the following order is passed:-

[a] The judgment dated 22nd October, 2012 in Revision [BIR] No. 1 of 2012 is partly set aside. The order issuing Process dated 6th January, 2012 against the Applicant No.1 is quashed and set aside.

[b] The proceedings shall continue against the present applicant no.2 herein. The trial Court shall decide the same in accordance with law and on its own merits without being influenced by any observations made in this order.

11. The application is partly allowed in aforesaid terms and

disposed of.

Judge

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